Allan Haley examines the arguments of the Episcopal Church’s partisans in the South Carolina case and finds they do not stand up to scrutiny.
Now intrudes upon my vocation one of the more unwelcome of my duties as an Anglican Curmudgeon. Having practiced as a trial lawyer for 44 years, the last six of which have been constantly embroiled in litigation with the attorneys for the Episcopal Church (USA), I would rather let the courts sort things out according to the merits of the law and the precedents.
But in the blogworld, anyone can express an opinion — on any matter whatsoever — and when the person with the opinion has an advanced degree, he or she thereby gains a sort of Internet prestige that not everyone touts, or can enjoy. After all, a Ph.D. degree is possessed by a very small proportion of those blogging on the Internet, and so it must carry some weight — right?
As usual, the answer is: “It depends — on what field the degree is in, and on what field in which the particular Ph.D is expressing his or her opinion.” The Presiding Bishop of ECUSA has a Ph.D degree in oceanography, but that degree (as such) does not make her an expert in Episcopal Church canon law (as the posts gathered on this page abundantly illustrate). In all of her canonical decisions, she has accepted the advice of her Chancellor, who is an expert in the Church’s canon law, but who has a rather blasé view of the function of canons (scroll down to “milestone #2”).
Moreover, since the Presiding Bishop has (most irregularly, for a nonprofit religious organization) allowed her Chancellor to employ his own law firm to prosecute the 70-odd cases brought by ECUSA (or to which it is or was a party), one would have to believe that the Chancellor is not exactly a disinterested party when it comes to expressing opinions on Church canon law. His firm’s very employment depends upon the opinions which he furnishes (in confidence, of course) to the Presiding Bishop!
Now for my bias: my opinions of ECUSA’s canon law are diametrically opposed to those of the Presiding Bishop’s Chancellor. Nevertheless, I came to those opinions without any hope of employment on behalf of anyone other than my own parish church, for whom I have long acted as an unpaid legal advisor (“Chancellor”, if you will). I derived them from a detailed study of the history and application of the canons within the Episcopal Church (USA) that has been spread over the last quarter century or so.
When I began my study, I had no particular axe to grind; I simply was interested in being a competent legal advisor to my parish (and later, to the trial court in my diocese). My education in the interpretation and application of canon law at the Church’s national level began in March 2008, when I read about the Presiding Bishop’s illegal inhibition and proposed deposition of the oldest bishop in the House of Bishops, the Rt. Rev. William J. Cox. I researched the amazing history of her manipulations of the canonical charges against him, and on March 31, 2008 penned a post that launched this blog as a source of legal commentary on the Presiding Bishop’s unending onslaught upon the integrity of Church law, entitled Five Violations of the Same Canon!
As it states on the “Guide to This Site” page, my posts on the canonical violations committed routinely by the Presiding Bishop and her Chancellor, all in the supposed name of ECUSA, are “a series of calls to repent, which will not stop until she does.” More than anyone else in the history of ECUSA, Katharine Jefferts Schori has infused the Church with a lawlessness — a pervading disrespect for the duly enacted laws by which we Episcopalians all agreed to be governed — that is matched only by the current Obama administration (and that is no small achievement on the part of 815). The more lawless she becomes, the greater the obligation upon her to repent.
So it is that I regard it as my duty to oppose the dissemination of 815’s propaganda in support of its lawlessness wherever and whenever encountered. The stakes in Mark Lawrence’s Diocese of South Carolina are particularly high just now, with the dispute having entered the courtroom for a decisive trial in front of the Hon. (and very formidable) Diane Goodstein. Because of existing legal precedent from the highest court of that State, the odds favor Bishop Lawrence and his diocese.
Those who blog as Bishop Lawtrence’s opponents do a disservice to their readers when they pass on the outright fabrications, distortions and falsehoods invented by 815’s lawyers for the purposes of all the litigation it has instituted elsewhere. Given the straightforward legal precedent that exists today in South Carolina, ECUSA’s case in that State can go nowhere. It will take a (most unlikely) grant of review by the Supreme Court of the United States, when the case reaches that point in about five more years, to change the legal landscape. Given the distant and unlikely future in which any such reshaping could occur, I submit that it is misleading and harmful to promote optimism where there can be none.
With that regrettably extended explanation as a preface, I now proceed to the task immediately at hand: to correct certain deplorable misrepresentations of fact and law that are passing for substantive analysis on the side of the rump group supported by ECUSA. Though I have done this on earlier occasions, no one among them has taken my analysis to heart, or still less, refuted it. Instead, they keep on promulgating the same fictions, dressed up in new language. This, I submit, is a gross disservice to those who would read and rely upon them.
The blog post which I fisk below comes from an otherwise admirable blog which seeks to compile a history of the current Episcopal divide in South Carolina — a subject to which I have devoted posts here, and here. With regard to the regrettable division that occurred (regardless of who spurred it), the blogger, a retired history professor named Ronald Caldwell, has compiled a useful chronology, and indicates that he is writing a book tracing its origin and evolution.
Thus it seems more necessary than ever that an attempt should be made to set Prof. Caldwell straight, before he commits himself to print. I am taking as my text his post of July 9, 2014, entitled “Reflections on the First Day of Trial” [note: Prof. Caldwell has since modified the title to remove the first two words]. After a brief introduction, he writes:
1-the trial is “to protect” the assets of the independent diocese. Lawrence knows full well that under Episcopal Church law, that he swore to uphold in 2008, all local properties are held in trust for the Episcopal Church and her diocese. The diocese recognized this for years, until 2011. In fact, the trial is to convince the judge to hand over the Episcopal Church property to the independent diocese. There is a difference between protection and seizure.
Notice how this paragraph ignores the All Saints Waccamaw decision, as well as leaves out the trial court’s obligation to follow it. You are not writing on a tabula rasa, Prof. Caldwell. Your State’s highest court has already ruled that there is no valid trust in parish property in South Carolina just by virtue of the Dennis Canon. Yes, there is most certainly “a difference between protection and seizure.” In law, you are entitled to protect what you own, and are forbidden to seize that which you do not own. Each of the plaintiff parishes owns its own property, free and clear of any trust in favor of the national Church or of the diocese. Not only is that what All Saints Waccamaw decided; but consistent with that decision, the Diocese subsequently gave each parish a quitclaim deed renouncing any remaining interest in its parishes’ property. Given these unarguable facts, it is the plaintiffs who are trying to protect their property, and the defendants who are trying to seize it from them.
2- [Diocesan Chancellor Wade] Logan testified that the diocese is a self-governing body in which the Episcopal Church is not involved in election of officers or disposition of property. In fact, the diocese acceded to the Constitution and Canons of the Episcopal Church until its purported “disassociation” on Oct. 15, 2012. …
Sorry, Prof. Caldwell, but your second sentence does not follow from, or relate to, the first. It is completely true that the national Church has nothing to say about dispositions of diocesan property — no diocese has to ask any permission from the national Church to dispose of its property. Nor does the national Church play any part in the election of diocesan officers, which takes place wholly at the annual diocesan conventions. “Accession” means nothing more or less than “agreement to”, and agreement involves consent, which in law is neither binding nor perpetual unless expressly so stated in the words of accession. So a consent once given may be revoked at any time — unless it is stated expressly as a “perpetual and binding accession” (as in, e.g., the Articles of Confederation).
… Lawrence became bishop only after he was approved by the majority of standing committees of the dioceses of the Episcopal Church and after he took an oath of conformity to the discipline of the Church.
This is undisputed, but only a partial, truth. It is not the whole truth, because it omits all mention of Bishop Lawrence’s other vow upon ordination, and does not discuss how one resolves a conflict between the two vows.
The Dennis Canon is the well-known Church law on property and the one the diocese promoted throughout the All Saints Waccamaw case, to September 2009.
Why bring this up, if you are going to ignore what that decision actually said about the non-effect of the Dennis Canon in South Carolina? From and after September 2009, the Dennis Canon is a nullity in South Carolina — please read the decision (scroll down to Section II.C.).
Dioceses of the Episcopal Church are not independent entities outside the scope of the Constitution and Canons of the Episcopal Church.
Where is your authority for that claim, Prof. Caldwell? You are simply repeating 815’s propaganda. If you want the full history of how PECUSA was assembled from its pre-existing parts, please read this post.
3-Lewis said votes to “disassociate” came from 90 percent of clergy and delegates. Actually, records show that the decision to “disassociate” was made by 12 people, the standing committee, on October 2, 2012. This vote was enacted on October 17, when Lawrence told the Presiding Bishop. He made it retroactive to October 15, the moment Lawrence had been informed by the Presiding Bishop that she had placed a “restriction” on his ministry. The schism happened on October 15 unknown to anyone outside the ruling clique of the old diocese. It was rubber stamped on Nov. 17 by a partial convention. The counter-revolution in the old Diocese of South Carolina was from the top down, and the top was a relatively small group of people.
This is revisionist history — told from the point of view of one who wants to bend the facts to make a point (that the decision to withdraw was not that of the whole Diocese, but only of a handful of people at its top). It ignores, first of all, the notice requirement of thirty days in order to call a Special (N.B.: not “partial”) Convention, so that the Standing Committee was the only body that could make the first and most rapid response. But what it primarily ignores is the fact that thirty-four of the Diocese’s parishes have joined as plaintiffs in the lawsuit. That is hardly the kind of “top-down” action which the professional historian here seeks to portray.
4-Lewis said the diocese existed in 1785 outside the Episcopal Church. In fact, a state convention in South Carolina in 1785 organized an association of remaining Anglican churches. It helped draw up the founding constitution of the Episcopal Church in 1789 and acceded to the constitution and canons of the Church. South Carolina did not become a diocese until 1795 when it received its first bishop. The diocese never thought of itself outside of the Episcopal Church until Lawrence and his allies led a “disassociation” in 2012.
Once again, this discussion begs the question. The claim that “South Carolina did not become a diocese until 1795 when it received its first bishop” assumes that dioceses must have a bishop. But even ECUSA’s Constitution has always recognized that a Diocese is led by its Standing Committee when it does not have a bishop, so the claim is just false: having a bishop is not the distinguishing characteristic of a diocese. The word “diocese” comes from a Greek word meaning “administration”, and its ultimate derivation is from the Greekoikos (“house”), from which also comes our word “economy” (= “management/rule of a household”). It was not used of the groups that came together in 1789 to form ECUSA. If you look at PECUSA’s original Constitution of 1789, the bodies signing it referred to themselves as (e.g., Art. II) “the Church in each State” (my emphasis). Indeed, the word “diocese” appears nowhere in the 1789 Constitution.
So it is a big red herring to talk of “dioceses” in the period from 1785 to 1795 — or even until 1838, when the Constitution was amended by General Convention to substitute “the diocese” for the words “the State” everywhere those words appeared. Until that year, every State with a member group of organized parishes was viewed as a separate regional unit of the national Church; but then New York divided into two regions, east and west of the Hudson, and so the term “diocese” was adopted generally to refer to all the administrative units of the Church, regardless of State boundaries.
And notice, please, how Prof. Caldwell conflates the notion of a “state convention” with that of the delegates sent on behalf of the “Church in the State of South Carolina” to form the national Church. He says in his second sentence that the “state convention” in South Carolina “organized an association” of Anglican churches, but in the very next sentence he claims that “it” (the State convention? or the association of Anglican churches?) helped draw up the “founding Constitution.” As shown in the post linked two paragraphs above, the “Protestant Episcopal Church in the State of South Carolina” in 1789 sent one clergy deputy, and two lay deputies, with authority to negotiate and sign a national Constitution that would bind that body to the greater assembly of State churches (“General Convention”). So those three deputies were the ones who actually “helped draw up” the first Constitution — and they were deputies chosen by, andrepresenting, their association of local Anglican parishes.
So what was the entity in South Carolina that agreed to “accede” to the national Constitution? Answer: it was the same body that in 1838 began to call itself “the Episcopal Diocese of South Carolina” — it was an unincorporated association of pre-existing (and formerly Anglican) churches within the State that eventually incorporated in 1973. There is no mystery here — it is straightforward: dioceses (“churches in the State of …”) existed before the national Church came into being, and indeed, without their separate pre-existence, there would have been no way to form a truly representative national organization.
Now Prof. Caldwell’s discussion degenerates into an attack against Bishop Lawrence personally:
5-the diocese of SC disassociated from TEC only after TEC tried to remove its bishop. In truth, Lawrence willfully and voluntarily left the Episcopal Church on October 17, 2012 by verbal declaration to the Presiding Bishop. He followed this up by word and deed for the next seven weeks after which the Presiding Bishop accepted his renunciation of orders and deposed him as a bishop in the Episcopal Church.
This is utter nonsense (and Prof. Caldwell misinterprets the canons to allow an oral — instead of the required written — “renunciation” to serve as the prerequisite for a deposition), as I explained in this earlier post. There is no need to repeat my observations here.
6-the diocese of SC represents 80 percent of the 30,000 members of the pre-schism diocese. Actually, the pre-schism diocese numbered around 29,000. It has shrunk by nearly a third since Lawrence became bishop. 2,000 people left with St. Andrew’s of Mt. Pleasant. Around 7,000 remained in the Episcopal Church. The independent diocese has around two-thirds of the pre-schism diocese. And, it may well be that this number is declining as people are gradually returning to the Episcopal Church. Also, forty per-cent of the pre-schism clergy remained with the Episcopal Church.
I shall let those more familiar with the statistics of South Carolina demonstrate the falsity of these claims. Where is the proof of the undocumented assertion that “people are gradually returning to the Episcopal Church”? And how could forty percent of the pre-schism clergy have served less than one-quarter of all the parishioners? Were the parishes that remained the ones that were top-heavy and over-staffed?
7-TEC “embraced…a radical fringe scriptural interpretation that makes Christ’s teachings optional for salvation.” This is an outrageous untruth which only reflects badly on the character of the people deliberately repeating it.
If this is a true statement, Prof. Caldwell, then please explain how clergy can reconcile their ordination vows to be faithful to the “doctrine, worship and discipline of Christ” with the doctrine, discipline and worship of the current national Church, which has approved provisional rites for the blessing of same-sex unions, and which turns a blind eye to those bishops who violate the Canons and the Rubrics of the BCP to celebrate actual same-sex “marriages.” (See this earlier post for details.)
So we come to the final desultory accusation against the Diocese lodged by this professional historian:
8-the independent diocese is “recognized” by Anglicans around the world. It is indeed “recognized” by some highly conservative and homophobic Anglican prelates in some Third World countries. It is absolutely not recognized by the Anglican Communion and never will be.
This charge is, I regret to say, pathetic. The Anglican primates in “some Third World countries” are to be described as “homophobic” — for remaining loyal and true to the faith handed down to them from the Apostles?
In so denigrating your ecclesiastical superiors, Prof. Caldwell, you have — at the end of your “reflections” — at last shown your true colors. May you come to regret what you have written, and may God give you the grace and peace to recognize what is true, and what is false, about the claims made in the Church on behalf of ECUSA. Especially the claims made by its hired counsel in court.